FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. DN15-11-774
SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY,
Assistant Prosecuting Attorney, for Appellee.
ALEXANDRA HULL, Attorney at Law, for Appellant.
FARAH, Guardian ad Litem.
DECISION AND JOURNAL ENTRY
S. CALLAHAN, JUDGE.
Appellants, Mother and Father, appeal the judgment of the
Summit County Court of Common Pleas, Juvenile Division, that
terminated their parental rights and awarded permanent
custody of their child, J.B., to appellee Summit County
Children Services Board ("CSB"). This Court
reverses and remands.
Mother and Father are the unmarried biological parents of
J.B. (d.o.b. 10/10/15). Father was incarcerated and serving a
nine-year prison sentence when the child was born at 32 weeks
gestation. Due to the child's prematurity, Mother's
cognitive delays which hindered her ability to care for the
baby without prompting and intervention, and Mother's
lack of family support in the area, CSB filed a complaint on
the day J.B. was scheduled to be released from the hospital,
alleging that the child was dependent. The juvenile court
granted the agency an emergency order of temporary custody.
At the adjudicatory hearing, Mother stipulated that J.B. was
a dependent child. The agency then presented evidence as to
the child's dependency relative to Father. After the
initial dispositional hearing, the juvenile court placed the
child in the temporary custody of CSB, and adopted the
agency's case plan as the order of the court.
Over the course of the next several months, Mother was
compliant with her case plan objectives. However, she
remained unable to implement the information she received
during intensive parenting classes to demonstrate an ability
to safely and adequately care for the child. Approximately
ten-and-a-half months after filing its complaint, CSB filed a
motion for permanent custody. In support of the first-prong
finding necessary for an award of permanent custody, the
agency alleged that (1) the child could not be placed with
either parent within a reasonable time or should not be
placed with his parents pursuant to R.C. 2151.414(B)(1)(a),
and (2) Father had abandoned the child pursuant to R.C.
2151.414(B)(1)(b). As the facts did not support such an
allegation, CSB did not allege that J.B. had been in the
temporary custody of the agency for 12 or more months of a
consecutive 22-month period pursuant to R.C.
2151.414(B)(1)(d). The agency further alleged that an award
of permanent custody was in the child's best interest.
Mother filed a motion for legal custody, or in the
alternative, for a six-month extension of temporary custody.
The juvenile court scheduled a permanent custody hearing for
a date three-and-a-half months later; however, the hearing
did not take place.
Three days after the permanent custody hearing was to have
taken place, the juvenile court, without explanation, issued
an order rescheduling the permanent custody hearing for a
date two-and-a-half months later. One month after the latest
scheduling order, the juvenile court held a file review and
issued an order continuing the permanent custody hearing for
another two-and-a-half months on the court's own motion.
The next day, CSB filed another motion for permanent custody,
notwithstanding the fact that its original motion remained
pending. The agency neither withdrew its original motion, nor
requested leave to file a second motion. Nor did the agency
caption its second motion as an amended or renewed
motion.Moreover, there is no record of the trial
court having ruled on the first motion.
In its second motion for permanent custody, CSB attempted to
combine the first-prong provisions of R.C. 2151.414(B)(1)(a),
(b), and (d), muddling the statutory language in the process.
Specifically, the agency alleged:
The child is not abandoned as to his mother, he is not
orphaned, and he has been in the temporary custody of one or
more public children service agencies or private child
placing agencies for twelve (12) or more months out of a
consecutive twenty-two (22) month period or previously in the
temporary custody of an equivalent agency in another state,
but cannot be placed with either parent within a reasonable
time or should not be placed with his/her parents.
only time CSB expressly alleged that Father had abandoned the
child was in reference to an R.C. 2151.414(E) factor,
relevant to first-prong grounds that the child cannot be
placed with either parent within a reasonable time or should
not be placed with either parent pursuant to R.C.
2151.414(B)(1)(a). Moreover, as to the (B)(1)(a) prong, the
agency disregarded the statutory language and changed the
conjunction from "and" to "but" as quoted
One week before the permanent custody hearing was ultimately
held, Father filed a motion for legal custody to a third
party, specifically a "close family friend" who
lived in California. At the permanent custody hearing, the
juvenile court considered CSB's second motion for
permanent custody, Mother's motion for legal custody, and
the parents' joint oral motions for a six-month extension
of temporary custody. At the conclusion of the hearing, the
visiting judge issued a judgment entry granting CSB's
motion for permanent custody and terminating Mother's and
Father's parental rights to J.B. Mother and Father filed